Policy Brief #7 (June 2001)

by Robert C. Johansen

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In Brief U.S. opposition to creating a permanent international criminal court arises from unwarranted fears that U.S. officials might be wrongly prosecuted. Opposition also rests on a mistaken belief that the United States can protect legitimate national sovereignty only by rejecting international legal constraints on criminal abuses of sovereignty. However, the proposed court would serve U.S. interests by investigating the world's worst international crimes and assigning individual responsibility for them, reducing collective blame for the criminal acts of individuals, discouraging atrocities, and upholding international law while protecting against politically motivated prosecutions.

The creation of a permanent international criminal court, designed to hold individuals (rather than states) accountable for failing to obey international humanitarian law, promises to become the single most important international institutional advance since the founding of the United Nations more than a half century ago. Although nearly all of the world's democracies support the court, the United States opposes it. Why?

Once established, the world's first permanent criminal court will stand ready to investigate the worst international crimes known to humanity whenever and wherever they occur. It will help deter crimes by confronting lawbreakers with the possibility of investigation, trial, and punishment. Its deterring impact is less likely to be weakened by the charges of politically motivated investigations and selective justice that have undermined the four previous ad hoc tribunals (Nuremberg and Tokyo after World War II and the former Yugoslavia and Rwanda more recently). Unlike the temporary tribunals, the new court will have the greater efficiencies and impact of permanency, with the authority to build respected precedents over time. The court can contribute to reconciliation by replacing the stigma of collective guilt, which often condemns an entire society for the sins of a minority, with individual accountability. These achievements can help discourage future cycles of violence.

As of June 18, 2001, 34 of the 60 countries required to establish the court have ratified the Rome treaty, including allies like France, Italy, Belgium, Norway, Canada, and Germany. The United Kingdom and other European states are expected to ratify the treaty soon. In opposing the court, the United States voted with Iraq, Libya, and China, well known for indifference to honoring human rights law.

U.S. Opposition to the Court
The reason for U. S. opposition is simple. All the temporary tribunals that the United States has supported were limited to investigating others; they could not hold U.S. citizens accountable. Expecting that the new court would not be allowed to take any action until after a U.N. Security Council decision had referred a case to the court, U.S. officials at first also supported the proposed permanent court. Within the Security Council, Washington could use its veto power to prevent any investigation of itself or its friends. The United States wanted a court in which the prosecutor could never bring charges against anyone from the United States, although the United States could, through a Security Council decision, bring charges against others. This position so flagrantly violated principles of equal justice that eventually the rest of the world rejected the U.S. position in order to establish a court with independent authority.

Why does the United States persist in refusing to accept the jurisdiction of an impartial court over the conduct of its own law-abiding citizens, if by accepting the court Washington could in return gain reciprocal legal constraints on others? Why does the United States not want international laws against war crimes and genocide, with which it agrees, applied to itself?

First, U.S. officials fear that the mere existence of an independent court might limit U.S. uses of military power. To have a court ready to investigate U.S. officials for war crimes or crimes against humanity might inhibit officials from sending forces into combat and using aerial bombardment that might kill many civilians. Yet the law governing international military conduct is not changed by the establishment of the proposed court. If U.S. military actions are legal, it has nothing to fear from the court.

Second, U.S. leaders fear that an international prosecutor might bring politically motivated charges against U.S. officials. The concern about politically motivated prosecutions of U.S. (or other) nationals is understandable, but the treaty contains four important safeguards to address this concern.

These four safeguards should ensure that the United States would not be subjected to unwarranted charges.

Third, the United States claims that the court's prosecutor has too much independence to launch investigations, because he or she could do so without a Security Council decision. But if the draft treaty had stipulated instead that the prosecutor could act only with a Security Council referral, then the Council role would surely have politicized the court, treating permanent members like kings, and putting them, as well as all those they would shield with their veto, outside the law. Again, this would be such an extreme violation of fair legal practice that France and Britain, although permanent members enjoying the veto power, both parted company from the United States on this question.

Fourth, the United States now actively opposes the court, even as a nonparty to the treaty, claiming that it will exercise unjustified jurisdiction over U.S. nationals by binding nonparties. Even if the United States does not ratify the treaty, the argument goes, U.S. citizens could be accused of a crime. The overreach argument, frequently voiced by Senator Jesse Helms and other Congressional critics, is a gross mischaracterization of the court. No new laws for human conduct are created by the court statute; existing laws will simply be better enforced. Of course the treaty permits the court to exercise jurisdiction over the nationals of nonparties where they have committed serious crimes, but there is nothing novel in this. The core crimes in the treaty are crimes of universal jurisdiction – that is, they are so universally condemned that every nation in the world now has a duty to exercise jurisdiction over suspects even without the proposed court and without the consent of the accused's own national government.

All nations are already obligated to prosecute or extradite for prosecution anyone who commits genocide or crimes against humanity. And the United States already participates in many treaties that permit U.S. citizens to be held accountable for criminal actions in foreign jurisdictions without special permission for prosecutions, including the treaty banning genocide, the Geneva conventions on war crimes, and the long-standing international laws against piracy and slave trade. In short, the treaty does not impose any obligation on nonparties that they are not already bound to fulfill, but is needed to enforce existing laws more effectively. In addition, the proposed court enhances protection for U.S. nationals by ensuring rights of defense and other due process guarantees that cannot be ensured in every national prosecution around the world.

The continued U.S. insistence that no person should be tried without the consent of his or her national government seems a self-defeating condition, which if established, would enable any world-class criminal to stay out of court. It is difficult to imagine the governments of Saddam Hussein or Slobodan Milosevic consenting to the prosecution of their own crimes.

The Benefits of U.S. Ratification
Although President Clinton belatedly signed the statute, he did so with the goal of drastically revising the treaty already agreed upon by 120 countries at the Rome conference. Both the Clinton and Bush administrations have recommended that the Senate not ratify the treaty, with vociferous, unyielding opposition coming from former Senator (now Attorney General) John Ashcroft, Senator Jesse Helms, who chairs the Senate committee that would need to approve the treaty for U.S. ratification, and Majority Leader Tom Delay in the House.

Yet, 66% of U.S. citizens support ratification, even after hearing U.S. arguments against it, according to a 1999 Roper poll. More than 1000 professional associations have joined the NGO (Non-Governmental Organization) Coalition for the International Criminal Court, including the Red Cross, American Bar Association, Amnesty International, Human Rights Watch, Lawyers Committee for Human Rights, and International Commission of Jurists. Members of these organizations and most Europeans, Latin Americans, and people in other democracies understand that the benefits of the treaty will far outweigh the costs.

First, the costs of ratification are extremely low. The existing treaty meets the dual U.S. interests in an effective court and in protecting itself against inappropriate prosecutions.

Second, although the court will not deter all crimes, its permanent presence and international stature will likely deter at least some atrocities and perhaps a few genocides, and this will serve U.S. interests. If such crimes are not deterred by law, the United States may feel compelled to impose economic sanctions or send soldiers into dangerous contexts, resulting in loss of lives. If the court can thus save the lives of even a small number of U.S. service men and women, as well as the lives of other victims, it is worth it.

Third, the court is a cost-effective institution for addressing violations of international humanitarian law because it will avoid the recurring need to devote time, energy, and money to establishing less effective ad hoc tribunals. To the extent that it does deter, it will also save the money that otherwise would go into costly U.S. or UN deployments.

For the world's only democratic superpower to encourage other countries to reject law enforcement and to keep themselves outside the law is a disastrous policy that will boomerang, haunting us and our grandchildren grievously in the future, and on many more legal issues than the criminal court itself. In refusing to participate constructively in international law enforcement, U.S. officials seem to confirm the claim by Milosevic, Hussein, Qadafi and others that international trials are not impartial and are politically motivated, because the law does not apply equally to all.

The issue is not whether it is good to give up U.S. sovereignty to a new global institution. Instead, it is how can we shape all countries' sovereignty, including U.S. sovereignty, so that legal instruments will bridle the misuse of sovereignty.

Human brutality is not produced simply by the evil that lies within some other men and women. It can arise also from our failure to build on the Nuremberg precedent and to ensure that mass murderers are indicted, that law is enforced equally throughout the world, that the content of that law is taught in every village and town on this planet, and that the norms of acceptable conduct are repeatedly affirmed by a legal process made robust because it represents the entire world community.

About the Author
Robert C. Johansen is professor of government and international studies and a senior fellow at the Kroc Institute. He is currently conducting research on the role of non-governmental organizations in promoting compliance with international humanitarian law and the establishment of permanent International Criminal Court (ICC), under a grant from the Aspen Institute. He may be contacted at Johansen.2@nd.edu. Further information about Kroc Institute research on Enforcing Norms of Peace is available on the Kroc Institute's website.

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